FISHKILL -- The legal arguments have been made and now it's up to a judge to decide whether a local company can expand its mining operations.

Southern Dutchess Sand and Gravel has requested a state Department of Environmental Conservation permit to expand its mine by digging under the water table.

If approved, the company would be able to remove about 2 million cubic yards of sand and gravel and create a 22-acre lake. The Town of Fishkill company is owned by the Montfort Group, a family-owned concrete block and masonry supplier.

Opponents say the expansion could pollute the Clove Creek aquifer, a naturally filtered water source for about 18,000 residents. Peter Rostenberg, president of the environmental group Fishkill Ridge Caretakers, said he fears polluted storm water could damage trout and other wildlife.

DEC Administrative Law Judge Richard Wissler is reviewing briefs for and against the project. The deadline for filing the briefs was Oct. 29. He is expected to rule within 30 days on which issues require additional hearings and which parties have the legal right to intervene in the mining proposal.

Appeal possible

That ruling could be subject to an appeal, Wissler said.

The debate stems from Southern Dutchess Sand and Gravel's application in 2001 for a permit to modify its site and expand its operations. In January 2002, the DEC ruled the modifications would have no significant environmental impact.

The town and village of Fishkill, as well as some environmental groups, petitioned the DEC's determination. In April 2003, the DEC reversed its position after staff members uncovered an 18-inch pipe and drainage ditch that could potentially feed runoff water from Route 9 and neighboring properties into the proposed lake.

A September meeting was held on runoff water and drainage. At the meeting, Roy Budnik, the geologist for the mining project, presented a plan to channel runoff water away from the mine and into a ditch on the southeastern part of the Montfort property. From the ditch, the water would flow into drainage paths to the Clove Creek.

Donald Groff, a hydrogeologist with the Fishkill Ridge Caretakers, said the proposal was incomplete and should have taken into consideration heavy rainstorm flooding and nearby wetlands.

Laura Zeisel, an attorney for the mining company, said the DEC knew the pipe existed and that the water does not contain any mining materials. She cited tests for a DEC water discharge permit done by Cranesville, a nearby cement block company, that showed the runoff water met safety standards.

In her closing brief, Zeisel wrote the petitioners "did not propose any substantive and significant issues," a requirement to intervene in the proposal, and did not offer proof or witnesses.

The brief also noted the Fishkill Ridge Caretakers were late in filing their petition against the proposal.

Mining proposal

A DEC administrative law judge is reviewing briefs for and against the project. He is expected to rule within 30 days.

In the Fishkill Ridge closing statement, Attorney Thomas Halley wrote the expansion was unlawfully split into separate projects to avoid an environmental review and could lead to future developments.

Rostenberg said the proposal needs a full environmental study and independent water tests. "We are pro-business. We're pro-government," he said. "But we're pro-water, and the important thing about the Clove Creek Valley is it's going to be lost ... (and) the people who are going to pay are the public, the taxpayers."

Denis Callinan, a member of the Concerned Residents of East Fishkill, also called for a full environmental review.

"It is not a good idea to mine over an aquifer. It never was," said Callinan, one of several residents in East Fishkill with wells polluted by PCE, or tetrachloroethylene. They hope to tap into the Fishkill aquifer to replace their contaminated wells.

The DEC staff brief stated the issue should be adjudicated because they have "insufficient information to determine the extent of the potential impact on Clove Creek" with the mine redesign and the lack of information on the existing drainage swale.

The brief also agreed none of the petitioners raised a substantive and significant issue.

Greg Supple, the Fishkill village attorney, said officials signed an agreement with Southern Dutchess Sand and Gravel to have three test wells at the site to sample the water quality.

The village also requested the mining company hire a spill contractor on call in case of any contamination incidents.

"In conjunction with those wells and the DEC permit, we believe the village will be adequately protected," he said.

Fishkill Town Attorney Ron Blass said the town supports the expansion.